Nolan v Devonport

In 1995 the claimant, Mr Nolan, obtained judgment against both defendants, who were husband and wife, Mr and Mrs Devonport, in the sum of £645,461.64 with interest. Mr Devonport was adjudged bankrupt in 1995 and died in 2000. Mrs Devonport, the second defendant, claims to have been unaware of the judgment against her until May 2001. On the 10^th October 2002 the claimant obtained permission to execute the sum due (by then over £1m) by way of charging order. In November 2002 the second defendant responded by indicating that she would issue an application to set aside the judgment, which she did on the 17^th December that year. This year, 2006, the second defendant has finally sought to bring that application to a hearing. The claimant has issued an application (7^th March 2006) to strike out the set aside application as an abuse, and to obtain a final charging order.

Miss Temple, counsel for the second defendant, has sought to explain the extraordinary delay in pursuing the application to set aside. She draws attention to the following. In 2000 the claimant applied to register a legal charge claimed to have been entered into between the claimant and both defendants on the 12^th January 1995 and to have been executed in 1997. In 2001 the Deputy Solicitor for the Land Registry directed the issue of proceedings in the Chancery Division to determine the validity or otherwise of the legal charge. These were issued (MA191152) in July 2002. The second defendant filed a defence and counterclaim, raising the defence that she was required by an acquaintance of her husband to sign under duress and that she was not given proper advice; the claimant filed a reply and defence to counterclaim in the August. On the 10^th October 2002 the claimant was given permission by District Judge Chapman at Salford without a hearing to execute the judgment by way of charging order as against the second defendant.

In November 2002 the second defendant was granted Community Legal Services (“CLS”) funding for an application to set aside the judgment and charging order. District Judge Chapman ordered her to make the set aside application by the 18^th December, which she made on the 17^th. Witness statements were exchanged in February and March 2003. The claimant obtained handwriting expert evidence in the June.

In August 2003 the application to set aside was adjourned by the District Judge in Salford and ordered to be transferred to Leeds, the second defendant’s home court. Since then it appears that the file has been lost somewhere in Salford.

Nothing happened thereafter until in November 2004 the second defendant’s CLS funding was revoked in respect of the instant proceedings. In April 2005 her funding for the Chancery proceedings was discharged. She was a litigant in person as from November 2004. In August 2005 the Land Registry adjudicator directed that he would determine the dispute between the parties (“the DCA proceedings”), but in January this year adjourned them pending determination of the Chancery claim and upon the claimant’s confirming that that he proposed to take an active step in the instant action, namely applying to strike out the set aside application. There is then a number of communications by or on behalf of the second defendant to Salford Court enquiring about the listing of her application to set aside the judgment (26^th January, 3^rd February, 14^th February, 27^th February, 6^th March and 20^th March). By this time, the 20^th March, it is clear that the second defendant had re-instructed her solicitors. In the meantime, District Judge Greenwood at Leeds, by a letter dated 8^th March, was informed of the history of this matter by the claimant’s solicitors, who had not themselves been informed of the second defendant’s or her solicitors’ communications with Salford Court. At the same time, the claimant’s solicitors enclosed the strike out application dated 7^th March. District Judge Greenwood immediately referred the matter to myself as Designated Civil Judge and I directed on the 17^th March (internally) that both applications be heard by June. On the 22^nd March Leeds Court sent out a notice of confirmation that the proceedings had been transferred to Leeds. There was some confusion when the matter first was listed before me on the 31^st May as to which application was before the court, but I adjourned the claimant’s application to the 12^th June specifically adjourning the second defendant’s set aside application to await the outcome of this.

The issues for me to determine on this application to strike out the second defendant’s set aside application are: whether it would be appropriate to do so in this case; whether the court in any event should make a final charging order. The question whether the court has jurisdiction to strike out the application is no longer pursued.

Mr Aslett, counsel for the claimant, submits that the second defendant’s application itself and its prosecution has been largely reactive to the claimant’s moves to enforce the judgment. In simple terms it was not made promptly within Part 13.3(2) Civil Procedure Rules and is an abuse of the court process.

He submits that the only sensible inference to be drawn, from what has occurred or more particularly what has not occurred, is that the second defendant had no intention of bringing the set aside application to court. To this Miss Temple responds that the second defendant’s actions of the early months of this year culminating in District Judge Greenwood’s Order clearly indicate her intention to do so. Nevertheless, I cannot help observing that the Adjudicator’s Order in the DCA proceedings in January of this year recording that the claimant was to take steps within these proceedings appears to have been the stimulus for her to attempt to bring the set aside application on for hearing. There is no evidence to suggest that, without that stimulus she would have spontaneously sought to revive it. In the event, the claimant took his own step of applying to strike it out.

Mr Aslett relies on an abuse of process argument based on the substantial delay and breaches of Rules or Orders of the court. He highlights the relevant periods to take into account as 18 months from the second defendant’s claimed first knowledge of the judgment against her and the application to set aside; 3 months to readiness for a hearing; 36 months from readiness for hearing to District Judge Greenwood’s Order. He highlights, in particular, failure on the part of the second defendant to bring the application as soon as it was apparent that it needed to be made (paragraph 2.7 Practice Direction to Part 23) ; failure to help the court to further the overriding objective, in particular, to deal with the application expeditiously (Part 1.3); failure to file evidence in response to the claimant’s by the 28^th February 2003 – such statement as was served was unsigned and, therefore, unverified – (District Judge Chapman’s Order of the 13^th January 2003).

Miss Temple responds that, once the application was made, it was pursued properly through Salford Court; that the second defendant cannot be blamed that the court lost the file and failed properly to transfer the case to Leeds until this year; that a large proportion of the 36 months delay can be attributed to the second defendant’s being a litigant in person; that due allowance should be made for this.

Mr Aslett submits that the claimant will suffer undue prejudice if the application is allowed to be heard. In particular, the set aside application has held up the proceedings for registration of the Legal Charge; there are 3 other charges against the property; the property has been abandoned by the second defendant; the first defendant’s Trustee in Bankruptcy is liable to effect a sale before the Charging Order is made absolute, if that matter is not resolved now; that there has been considerable erosion of the equity in the property; a fair hearing of the application is not now possible in view of the passage of time – the central issue at the hearing would be whether the second defendant was served with the writ in February 1995; that if judgment were to be set aside a fair trial could not now take place; many documents have been destroyed; the second defendant has no other assets; delay has meant that interest on the judgment debt is capped at 6 years.

Miss Temple submits that the prejudice relied on is no more than inconvenience and that, in any event, there is nothing that could not have been raised in answer to the hearing of the application to set aside. Further she submits that the Civil Procedure Rules give the court a variety of sanctions within its armoury to deal with prejudicial delay; that striking out the application, which would determine the case finally against the second defendant, is a draconian step which ought not to be taken, if there is any other sanction to be applied that would still enable the merits of the set aside application to be heard.

Although Miss Temple submits that the second defendant’s Human Rights would be prejudiced, if the application were struck out, it is plain to me that she has had proper access to the courts at all times. The real question is whether she has chosen to take sufficient advantage of the procedures open to her. For those reasons, consideration of the second defendant’s human rights does not advance the matter one way or the other.

The Rule under which the court has the power to strike out an application is the general power contained in Part 3.1(2)(m) which enables the court to take any step for the purpose of furthering the overriding objective. It is equally clear that the prime responsibility for furthering the overriding objective lies with the court. In my judgment, I have jurisdiction to strike out the set aside application, should it be just to do so in furthering the overriding objective.

Whilst I must not in effect prejudge the application to set aside, it seems to me that in considering the merits of the claimant’s application to strike out, I may have an eye to the prospects of the set aside application succeeding. In this regard, it seems to me that the second defendant has insuperable difficulties, based on the chronology alone, to overcome the first hurdle of showing that she brought her application to set aside the judgment promptly. The delay between the time when she says she first became aware of the judgment against her, 2001, and the bringing of the application only when directed to do so by the court at the end of 2002, is impossible to explain other than that she did not think of taking any action to set aside the judgment until it became clear that the claimant was seeking to enforce it against her.

In my judgment, that would be an insufficient reason for failing to apply to set aside judgment promptly. Once a person learns of a judgment having been entered against him or her, then, if there is real merit in the defence available to that person, it is incumbent on him or her to take prompt action to have the judgment set aside. On any view, it cannot be said that the second defendant did so. The only question for the hearing of the application, in addition to whether there is any merit in the defence which she seeks to advance, is whether it was reasonable to sit back and wait until the claimant took steps to enforce. The difficulty with that is that it is entirely a matter for the party who has a judgment in his favour to decide when and how to enforce it. Many judgments remain outstanding and unenforced for years, whilst the judgment creditor awaits the right moment to enforce.

In my judgment, it is clear that the real reason for seeking to set aside judgment is to frustrate enforcement. Had the real reason been that the second defendant had a meritorious defence, then, in all the circumstances, she would surely have wished to apply to have such a significant judgment set aside immediately. The former reason, in my judgment, is capable of being an abuse of the court’s procedure.

I have considered the fact that for a time the second defendant was without legal representation, but, in my judgment, that does not begin to explain her inaction so far as seeking to strike out the judgment is concerned. I have also taken into account the delay between the District Judge at Salford ordering that the matter be transferred to Leeds and the matter first coming before a District Judge at Leeds earlier this year. However, it is remarkable that, until the second defendant made her enquiries of Salford Court in January this year, no communication is said to have been made with Salford Court between August 2003 until then.

In terms of prejudice, in my judgment, by keeping her application to set aside judgment extant, the second defendant has in conjunction with the other proceedings effectively delayed enforcement of the judgment. However, now that her application has a hearing date this ground of prejudice affects the merits of the application itself rather than the question of strike out.

I have been concerned about the failure of the Court actively to manage the application to set aside judgment as from August 2003. Whilst it could be said that the second defendant was in some difficulty even then in showing that she had acted with sufficient promptness, there was, nevertheless, an application before the court which required hearing on its merits. Salford Court made an order transferring the application to Leeds, but this order does not seem to have been effected. Had it been so, I should have expected Leeds Court to fix a hearing on receipt. In the event, that did not happen, until the claimant’s solicitor drew the matter to the attention to Leeds earlier this year. However, as Mr Aslett rightly submitted, the second defendant herself had a duty to help the court to further the overriding objective, in particular, to deal with the application expeditiously (Part 1.3 Civil Procedure Rules). It is not enough for a party to sit back and to await further directions of the court, albeit that the court is under a duty to manage the application. If there is delay, Part 1.3 makes it clear that the parties do have a duty to prompt the court.

In matters of procedure before the court, both parties have that duty. However, in the circumstances of this case where the claimant had judgment and the only attempts to pursue an application to set aside that judgment had been reactive to the claimant’s attempts to enforce, it would have been unrealistic to have expected the claimant to prompt the court earlier than he did. Even so, I cannot help observing that, had he done so, in all probability the application would have been listed in 2003 and not 2006. This is a matter which has given me particular concern.

It is no answer, on the other hand, for Miss Temple to say that for some of the intervening period the second defendant was a litigant in person. Firstly because for at least a year she still had the services of a solicitor and secondly she is plainly an intelligent woman who was well aware of the situation that faced her. Nor is it sufficient to rely on the time taken to obtain handwriting expert evidence, although I am surprised that the report obtained by the second defendant has not been disclosed or the claimant’s expert’s report agreed.

In my judgment, the second defendant’s failure to help the court to further the overriding objective, in particular, to deal with the application expeditiously, is far greater than that of the claimant and does not avail her in the end.

I have come to the conclusion that the claimant’s application to strike out the second defendant’s set aside application must succeed. The claimant, in my judgment, had no choice but to take the initiative to bring the extant but dormant application to a head with an application to strike it out. I am satisfied for the reasons that I have given, that the claimant would be unduly prejudiced were the application to set aside heard; that the failure to pursue the application, in the circumstances of this case, is fatal to its prospects of success in any event; that the application is itself an abuse of the court’s procedure; that there is no alternative order but to strike out, in the circumstances.

For the reasons that I have given, I am satisfied that it is now right to make the charging order final and I so order.